Our #1 Military Justice Story of 2016 was the Military Justice Act of 2016. The Act makes the most significant changes to the UCMJ since the Military Justice Act of 1983. The changes won’t take effect until a date established by President Trump (but no later than January 1, 2019). The anticipated effective date of the changes is January 1, 2019.

The Act also requires promulgation of implementing regulations within one year of the date of enactment; so by December 23, 2017. In advance of that deadline the Joint Service Committee published a large number of proposed changes to the Manual for Courts-Martial (noted here), held a public hearing (noted here), and invited public comment.

I attended the hearing and made comments. I also submitted written comments. You can download my written submission from the regulations.gov site here.

My written comments addressed six of the proposed changes, and recommended five additional changes. They were:

Public comment on proposed changes to the Manual for Courts-Martial:

a. Do not eliminate appellate counsel’s right to review the complete record of trial.

b. Do not radically alter the existing plea agreement system.

c. The sentence limitation portion of a plea agreement is not binding upon members.

d. Adopt a modified version of Proposal #2 for impaneling members and alternate members.

a. Clarify that Government counsel ordinarily represents either the prosecution or the appellate government division, and not the Government at large.

b. Increase procedural protections for a person accused of contempt.

c. Limit the use of personal identifiers in court-martial documents.

d. Require production of a privilege log when any entity that is represented by counsel asserts an evidentiary privilege.

e. Restrict the Government to the privileges contained in Military Rules of Evidence 505, 506, and 507.

Here’s some detail on my comments about the proposed changes.

a. Do not eliminate appellate counsel’s right to review the complete record of trial.

The JSC proposes to change Rule for Courts-Martial (R.C.M.) 1103A to eliminate the existing right of appellate counsel to review sealed matters not disclosed to the trial participants. This isn’t new; the JSC first proposed this change last November (discussed here), and I submitted a comment opposing it in January (discussed here). My recent comments are similar to my prior comments, with the addition of a discussion of Mil. R. Evid. 513 and the assertion that once the disclosure provisions of the Mil. R. Evid. are satisfied, a patient’s privacy rights are subordinate to the rights of the parties.

b. Do not radically alter the existing plea agreement system.

Section 5237 of the Military Justice Act of 2016 adds a new Article 53a to explicitly authorize plea agreements at courts-martial (current practice relies on the convening authority’s clemency power, functionally trading clemency for a guilty plea). The JSC proposes to apply the new Article 53a with proposed Rules for Courts-Martial 705 and 910, establishing a new system for plea agreements. The proposed rules include:

• Proposed R.C.M. 705(d)(1)(B) and 705(d)(1)(C) would allow a convening authority to impose a limit on the minimum punishment that a court-martial may adjudge.

• Proposed R.C.M. 910(f)(3) requires disclosure of the entire plea agreement before it may be accepted by the military judge.

• Proposed R.C.M. 910(f)(5) requires the court-martial – whether composed of a military judge alone or of members – to “sentence the accused in accordance with the agreement.”

These proposed rules will radically alter the existing process for plea agreements in courts-martial, upsetting a functional system and giving a convening authority too much unchecked power to punish an accused. In particular, allowing a convening authority to dictate a minimum punishment, and disclosing that minimum to the military judge (who typically adjudges the sentence), gives the convening authority too much power over an accused (who already suffers under command authority).

My comment recommended that the JSC not upset the current plea-agreement process. Alternatively, I made three suggestions:

1. Do not allow a convening authority to impose a minimum or specific sentence, but disclose the maximum agreed-upon sentence to the sentencing authority.

2. Allow a convening authority to impose a minimum or specific sentence, but give the military judge the power to reduce it, or to reject any minimum entirely, if the military judge believes the minimum to be unjust. Such reduction or rejection may be subject to a Government sentence appeal under the new Article 56(d).

3. Allow a convening authority to impose a minimum or specific sentence, but do not disclose any sentence limitation to the sentencing authority. If the adjudged sentence is lower than the agreed-upon minimum sentence, it will then be automatically increased to the agreed-upon minimum.

c. The sentence limitation portion of a plea agreement is not binding upon members.

The new Article 53a(d) makes a plea agreement binding on a military judge but not members. My comment highlights this discrepancy, but I’ve since learned that it is one of a handful of drafting errors that will probably be corrected in this year’s NDAA.

d. Adopt a modified version of Proposal #2 for impaneling members and alternate members.

Section 5161 of the Military Justice Act of 2016 modifies Article 16 to set the number of members for a non-capital general court-martial at 8, and for a special court-martial at 4. But the Act did not mandate a process to select that fixed number of members from the (typically larger) number detailed to the court-martial by the convening authority.

The JSC invited comment on four proposed systems for removing excess panel members (proposed R.C.M. 912A). Those proposals were: reducing the number randomly (Proposal #1), reducing the number by alternating additional peremptory challenges by the defense and the prosecution (Proposal #2), reducing the number based on instructions from the convening authority (Proposal #3), and reducing the number based on rules to be prescribed by the Secretary of each service (Proposal #4).

My comment recommended that the JSC adopt a modified version of proposal #2: Give all additional peremptory challenges to the defense, allowing it to remove any and all excess members.

Allowing the defense to remove any and all excess members is the right choice for at least two reasons.

First, removing excess members by giving additional peremptory challenges only to the defense would eliminate the vast majority of appellate issues involving denied challenges for cause by generally providing the defense with the opportunity to remove members who were not removed by the military judge when challenged.

Second, removing excess members by giving additional peremptory challenges only to the defense would counter-balance the fact that the convening authority both personally selects the members and personally decides that the case should go to trial. This creates at least the appearance of bias in member selection, and allowing the defense to remove any and all excess members cures this in all but the most extraordinary case.

The Manual for Courts-Martial defines the terms to the prejudice of good order and discipline as including only:

acts directly prejudicial to good order and discipline and not to acts which are prejudicial only in a remote or indirect sense. Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these distant effects. It is confined to cases in which the prejudice is reasonably direct and palpable.

MCM Part IV, ¶ 60.c.(2)(a) (proposed ¶ 91.c.(2)(a)). Similar language is omitted from the definition of the term conduct of a nature to bring discredit upon the armed forces in the proposed ¶ 91.c.(3) / current ¶ 60.c.(3).

My comment suggested making the definitions consistent.

f. The proposed change to Mil. R. Evid. 412 is long overdue.

“[Mil. R. Evid.] 412 cannot limit the introduction of evidence required by the Constitution.” United States v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 2011). Nevertheless, the existing Mil. R. Evid. 412(c)(3) contains a balancing test that suggests that an alleged victim’s privacy may be used to exclude evidence required to be admitted to protect the Constitutional rights of an accused.

That’s wrong, and the JSC proposes to change the rule to eliminate the erroneous test. This is a long overdue change, and should be adopted.

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